On appeal from the Supreme Court.
For the appellants, James M. Davis, Jr.
For the respondent, Lloyd, Horn & Perskie (Herbert Horn and DeVoe Tomlinson, of counsel).
The opinion of the court was delivered by
McGEEHAN, J. This appeal is from a judgment of nonsuit entered in the Supreme Court in an action tried in the Atlantic Circuit before Circuit Court Judge Burling and a jury. The suit was brought by the plaintiffs against the defendant railroad company for damages resulting to real estate owned by plaintiffs caused by fire, which they contended had been caused by and spread as a result of the negligence of defendant.
The defendant operated a railroad between Atlantic City and Camden which ran through Hammonton in a northwesterly direction. Sometime after two P.M. Sunday, April 20th, 1941, a fire was discovered burning between Egg Harbor Road and the railroad tracks within the Town of Hammonton. The defendant admitted that its right of way was 60 feet in width, although plaintiffs' proof was that such right of way was 50 feet in width in general. Egg Harbor Road runs parallel to the railroad tracks and 665 feet distant from the railroad right of way in a northeasterly direction. The
lands between the railroad right of way and Egg Harbor Road were in private ownership. On these lands in private ownership an eight-foot strip (also referred to as the "fire line" or "ditch") had been cleared and plowed parallel to the railroad right of way at a distance of 150 feet northeasterly, and this strip separated the denser growth lying between this strip and Egg Harbor Road from the 150-foot clearing running to the railroad right of way. The W.P.A. in 1938 had grubbed, disced and plowed this fire ditch and cleared everything between this ditch and the railroad tracks. The land between the plowed strip and Egg Harbor Road rose in the form of a hill and then descended, forming what is referred to as the "gravel pit" running up to the road. The wind was blowing from south to southwest at a velocity of twenty miles per hour. The fire traveled across Egg Harbor Road and Moss Mill Road and unto lands of the plaintiffs, where it damaged timber. When first discovered, the fire was already "quite a fire" and was "burning all along in back of the gravel pit." Of the number of witnesses who testified they saw the fire, only one, Sooy, a deputy fire warden, testified to any observation, on the day of the fire, of the land lying between the railroad right of way and the top of the hill in the rear of the gravel pit. Sooy approached the fire from the railroad side, went to the fire line or ditch and saw the fire burning from the northeasterly side of the ditch to the gravel pit, but saw no fire burning on the railroad side of the ditch; the fire he saw burning on the northeasterly side of the ditch was described by him as follows: "What I saw there burning was from the edge of this other fire, from the main fire."
No one saw the fire start. It was shown by records of the railroad that three of defendant's trains drawn by steam engine had passed over the tracks south of the fire during the hour previous to the discovery of the fire, but no one saw any train as it passed. There was no testimony as to whether or not any person was at or near the place of the fire immediately before or at the time the fire started, although an unsuccessful attempt was made to furnish such testimony by the witness McGrath. Sooy, the deputy fire
warden, testified that on the following day he went to the railroad, the fire line and the place of the fire, to see if he could find "the origin of the fire, how it started," but found nothing which indicated to him the cause of the fire. Samuel Loveland, Jr., a son of plaintiff Loveland, and a Peter Ranere visited the burned area several days after the fire and testified that there was what "appeared" to them to be a freshly burned area between the fire line and the tracks extending not over 10 feet from the fire line toward the railroad right of way, which placed it, at the nearest, 140 feet northeast of the right of way; they also testified that there were leaves and dried grass on the land lying between the railroad right of way and the fire line.
The applicable statutory provisions are contained in R.S. 48:12-85 (before amendment by Pamph. L. 1942, ch. 238) and R.S. 48:12-86, which provided:
"48:12-85. Spark Arresters on engines; penalty. -- Every Company or person operating or using any railroad shall take and use all practicable means to prevent the communication of fire from any engine used therein to the property of any owner or occupant of land adjacent or near to the railroad and shall provide the engine with ...